The s.97A blocking order (under the Copyright Designs and Patents Act 1988) was sought by some of the largest film studios and members of the Motion Picture Association of America (MPAA), including Disney, Warner Bros and Twentieth Century Fox. They requested that a total of nine websites be blocked on the ground that each was responsible for mass copyright infringement by making available prime film and TV content without the authority of the copyright owner. While four of the nine websites concerned were streaming or BitTorrent P2P sites, and therefore of a type that previous blocking orders had dealt with (think Pirate Bay (click here for our previous post on this) and SolarMovie to name but two), this case was different in that it was the first time the Court was asked to consider the applicability of s.97A to an open source application such as Popcorn Time.
It was for this reason that Mr Justice Birss declined to decide the case on the papers even though the ISPs didn’t oppose the application for the blocking order.
The Popcorn Time system
The Popcorn Time application, once downloaded and installed from the Popcorn Time website (the "PT Website"), enables users to browse film and TV titles, and ultimately access the content of their choosing via the BitTorrent protocol. The way in which the Popcorn Time app works enables sequential downloading i.e. users can watch content in real time rather than have to wait for the full download to take place - hence its user-friendliness and immense popularity. According to Popcorn Time's own creators (who refer to themselves as "3 geeks from Buenos Aires"), the app was translated into no fewer than 32 languages.
The app also benefits from frequent content updating via a Source of Update Information website (the "SUI Website").
In considering whether s.97A applied to the Popcorn app, Mr Justice Birss focussed his attention on 2 questions, namely whether the users or operators of the target websites (being the PT and SUI Websites) (a) infringed copyright; and (b) used the ISPs' services to do so.
The acts of copyright infringement alleged by the film studios were the same as in previous s.97A cases, namely: communication to the public, authorisation and joint tortfeasance.
The communication to the public argument failed in respect of both websites because the judge found that it is the application itself rather than the websites with which it interacts that communicates the copyright works to the public.
For similar reasoning, the authorisation claim failed. The judge was not satisfied that there was sufficient evidence that website operators themselves were infringing copyright in the claimants' works by authorising the communication of those works to the public by (i) the operators of the PT and SUI Websites and/or by (ii) those who place the infringing content on the Websites. The judge indicated that had the claimants instead framed their argument in terms of the suppliers of the Popcorn Time applications authorising acts of infringement by users, he would have found in their favour.
In a case of third time lucky, the joint tortfeasance argument did succeed. Mr Justice Birss found that "the suppliers of Popcorn Time have a common design with the operators of the host websites to secure the communication to the public of the claimants' protected works, thereby infringing copyright". He also held that they were clearly using the ISPs' services in doing so, for the reasons set out in previous s.97A decisions.
The judgment is concise, its conclusion too, which was neatly summarised by Mr Justice Birss - "The point of Popcorn Time is to infringe copyright. The Popcorn Time application has no legitimate purpose. It is a proper use of the court's power under s. 97A both to seek to prevent its dissemination and to seek to interfere with its operation". The decision will be welcomed by rights owners as a further extension of the applicability of s.97A.